Anthony Albanese has not been prominent on Julian Assange, rather he’s been defensive. But the PM and senior Labor figures were quick to claim credit on the news of Assange’s release. Rex Patrick cautions on success attribution.

In July 2022 Attorney-General Mark Dreyfus discontinued the prosecution of Bernard Collaery, the lawyer for Timor whistleblower Witness K.

It was not, however, an act of conscience. In his announcement Dreyfus stated that he, in making his decision, had “careful regard to our national security, our national interest and the proper administration of justice.”

The truth of the matter was that the charges were dropped dominantly on national security and national interest grounds, after pressure from the Timorese Government and Australian fears of China’s expansion plans in relation to Timor.

Foreign Minister Senator Wong confirmed this in an answer she provided a Senate Question on notice.

“I discussed the prosecution of Bernard Collaery with the President of Timor-Leste, Jose Ramos-Horta and foreign Minister Adaljiza Magno but telephoned shortly before the Attorney-General, the Hon Mark Dreyfus QC MP, announced the discontinuation of the prosecution of Mr Bernard Collaery on 7 July 2022. Both President Ramos-Horta and Foreign Minister Mango have issue public statements referring to our conversations”.

Spies Like Us: how Timor’s oil and gas delivered justice to Bernard Collaery

On Assange the Albanese Government has been equally weak. Albanese’s first mention of Julian Assange in the 47th Parliament was on 7 November 2022 in response to a question time inquiry from independent MP, Monique Ryan, asking if it was the intention of the Government to intervene to bring him home.

Albanese responds 

“The government will continue to act in a diplomatic way, but can I assure the member for Kooyong that I have raised this personally with representatives of the United States government. My position is clear and has been made clear to the US administration that it is time that this matter be brought to a close.”

In February 2023 Albanese was caught out with FOI revealing that there was no correspondence (a key tool in diplomacy) on Assange between him and the US President, Dreyfus and the US Attorney-General, nor Wong and the US Secretary of State. 

Documents show no sign Albanese government lobbied the US to bring Julian Assange home

In March 2023 Senator Shoebridge took Wong to task asking what was discussed in relation to Assange at the AUKUS announcement in San Diego. Wong rolled out the excuse (that doesn’t tie in with their current success claims) “As you would know, this matter is before the UK courts. I appreciate that Senator Shoebridge has previously made comments, with which we don’t agree, about our capacity to intervene in legal proceedings of another country—another jurisdiction.”

Pressure was put on the US Government by a parliamentary (not Government) delegation in September last year by Barnaby Joyce, Tony Zappia, Monique Ryan and senators Alex Antic David Shoebridge and Peter Whish-Wilson.

Meanwhile Government briefs being circulated internally were discussing options to bring Assange home only by way of prisoner transfer if and after he was found guilty by the US.

Jail, then jail, and more jail. Labor’s Assange strategy revealed.

Finally, in February this year, a motion was moved in the House of Representatives calling for an end to the saga. The motion was not moved by Albanese, credit for that must go instead to Andrew Wilkie.

“An Awkward Problem”: Julian Assange and the Australian dog that didn’t bark

The political push in relation to Assange came predominantly from the Greens and independents. It undoubtedly played a part, coupled in with worldwide public pressure.

But the reality is the plea deal is a deal orchestrated by lawyers in the US after the UK’s highest court granted leave for Assange to appeal against his extradition on the ground he was not protected by the press freedom provisions of the US Constitution.

The lawyer’s presentation to the US Department of Justice would have leveraged off the difficult UK pathway moving forward, the complexity of a prosecution in the US, the likelihood that it would go all the way to the Supreme Court, worldwide pressure and time already served by Assange.

So, forgive me if I looked at Albanese and Wong fronting the news as ‘success parasites’. Forgive me for feeling a little queasy seeing US Ambassador Kevin Rudd accompanying Assange in Saipan.

The news about Assange is great. But the great news that goes with seeing him land in Australia must be accompanied by the appropriate attribution for the win. It’s those who have engaged in the long hard slog that deserve credit, not those who turn up for the cameras at the end.

How can I be so confident that this is not the result of a key play by the Australian Government. Easy, they don’t really care. This is evidence in the prosecution of whistleblowers David McBride and Richard Boyle.

Bob Carr tweeted this morning – “Whatever you think about Assange, the fact is he was imprisoned for one reason: he exposed a bloody war crime committed by US troops against unarmed Iraqi civilians.”

My tweet in reply was “Whatever you think about David McBride, the fact is he was imprisoned for one reason: he exposed bloody war crimes committed by Australian troops against unarmed Afghans.”

Assange’s return also occurs in the week following the Albanese Government leaving ATO whistleblower Richard Boyle hanging out to dry. The SA Appeal Court effectively declared that Federal Whistleblower protection laws are all but broken, and yet the Attorney General still won’t intervene.

The good news for the Government is that the festering electoral sore of inaction on Assange has been cauterised. But the whistleblower persecutions continue.

The return of Assange is not a signal to the electorate that the Albanese Government has found its way.

And who paid for the flight home?

This post was originally published on Michael West.

Allegations have emerged that senior officials from the Departments of Veterans Affairs (DVA) and Defence appropriated the intellectual property of a suicide prevention app from a veteran-owned business. Stuart McCarthy with the investigation.

Consulting firm Deloitte was reportedly paid more than $1M by Defence to develop the mental health phone app HeadStrength, partially based on intellectual property (IP) from another company, RedSix.

The chief executive of RedSix says the theft of his IP “almost destroyed me mentally, physically and financially.” It echoes a similar theft from Swiss8 by Defence and Deloitte previously reported in the Daily Telegraph ($).

While the otherwise successful, self-funded RedSix was dumped by government officials after a ministerial endorsement and offers of financial assistance that didn’t eventuate, its competitor Innowell Pty Ltd – part-owned by PwC and co-founded by Professor Jane Burns while she chaired a DVA national advisory committee – was paid $30M to develop discredited suicide prevention software including trials involving DVA staff and clients.

Paid to Not Reform: Veterans’ Affairs chucks $73m at PwC to dodge Royal Commission

Numerous sources have told MWM that RedSix’s mistreatment was part of a wave of cronyism, IP appropriation, contract mismanagement, abuse of procurement procedures, financial inducements, misleading and deceptive conduct, gaslighting and other forms of orchestrated abuse by senior government officials and their consultants, during the controversial billion-dollar “veteran-centric reform” program.

RedSix suicide prevention app

RedSix chief executive Michael Handley, a former soldier who served in Somalia and Bougainville in the 1990s, registered his company in 2016 and developed his suicide prevention app over the next two years. Handley told MWM the process became his “passion and purpose to help others” by addressing “never before seen levels of veteran suicides,” costing $250,000 of his own funds, including a $100,000 personal loan.

Launched in September 2018, within two months, the app was being accessed by up to 260 veterans per week. After further software development and a re-launch over the following 12 months, Handley says

RedSix became the most downloaded mental health app for Australian military veterans by the end of 2019.

In October 2018, Handley met Professor Burns at the Invictus Games in Sydney and was asked to attend meetings and briefings with senior staff from the re-branded Open Arms counselling service, Defence and DVA, health experts, consultants and advisers involved in DVA and PwC’s taxpayer-funded “reform” program. Burns emailed Handley soon after their initial meeting:

“I do love what you’ve created, and when the time is right would love for you to meet with Steph Hodson from Open Arms – I introduced you to the Open Arms peer-to-peer support workers. … I am also really happy to make some connections into DVA and [Defence], and when you’re comfortable to the Minister’s advisors.”

Handley was later requested to tender for mental health software development contracts, which did not eventuate despite RedSix being endorsed in DVA’s mental health and wellbeing strategy and action plan, signed by then Defence Personnel and Veterans’ Affairs Minister Darren Chester in May 2020. The official strategy included the written objective for the department to:

“Continue the partnership between Open Arms and key veteran peer support groups to extend reach and provide support through existing peer-to-peer platforms, including RedSix, Swiss8, and Survive to Thrive.”

When DVA Secretary Alison Frame was asked in Senate Estimates last year about her department’s partnership with Handley, her First Assistant Secretary Program Delivery, Leanne Cameron, said, “No, we have no formal partnership with RedSix,” then deflected the issue to Defence.

Senior @DVAAus official Leanne Cameron in Senate Estimates on 31 May 2023 denying the existence of a partnership with the veteran-owned business RedSix, whose intellectual property was stolen for the @DefenceAust HeadStrength mental health phone app.

Ms Cameron: “No, we have no… pic.twitter.com/IwHp29eDN8

— Stuart McCarthy (@StuartMcCarthy_) June 26, 2024

RedSix vs HeadStrength

Handley says comparing the RedSix phone app with the content of the HeadStrength app launched by Chester and Defence Force chief Angus Campbell in October 2020 shows Deloitte used his intellectual property without his permission while the firm was engaged by Defence in their million-dollar consulting contract.

MWM does not allege IP theft or other wrongdoing on the part of Innowell or its employees. However, extensive correspondence between Burns and Handley does show that Innowell’s Burns was the instigator and primary facilitator in Handley’s engagement with government officials, their consultants and influential advisers.

The documents also show that during the entire 18 months of her dealings with Handley, Burns at no stage told Handley she was his commercial competitor with a financial interest in Innowell, a company with $30M in Commonwealth government backing. Nor of the extensive collaboration between DVA and Burns in Project Synergy.

Emails from Burns using her University of Sydney and BUPA email accounts also show that in 2020 she canvassed Handley, other veteran-owned businesses engaged with Open Arms, health information technology start-ups, universities and other organisations for involvement in a BUPA-led “industry consortia” bid for Commonwealth funding to establish a new Well & Productive Cooperative Research Council. One of the emails from Burns suggests involvement in the bid could provide

guaranteed funds over a period of time, and a pipeline to market.

Project Synergy

Project Synergy was initially undertaken using a $5.5 million grant from the National Health and Medical Research Council (NHMRC) to Burns’ Young & Well CRC, then continued under a University of Sydney/PwC joint venture funded by the subsequent $30M non-competitive health department grant.

The funds were used to establish Innowell before it was gifted to the University of Sydney, PwC, Burns and her University of Sydney colleague Professor Ian Hickie.

Involvement by the Open Arms veterans and families counselling service in Project Synergy included numerous trials and “participatory design workshops” for the Innowell software platform, published in journal articles co-authored by senior DVA staff including then Open Arms national manager Stephanie Hodson.

Defence and Veteran Suicide Royal Commission evidence

In sworn testimony to the ongoing Defence and Veteran Suicide Royal Commission and in numerous Senate Estimates hearings, former DVA Secretary Liz Cosson repeatedly claimed millions of dollars in external labour hire funding was required to clear an excessive backlog in veterans’ entitlement claims due to an ideologically driven DVA staffing cap imposed by the Turnbull-Morrison government.

However, a 2021 Australian National Audit Office report on the Veteran Centric Reforms program (VCR) says that additional staff funding not forecast in the 2017 business case – prepared by PwC at a cost of $8 million in public funds – was needed to undertake core DVA business including claims processing, while full-time DVA staff were actually involved in VCR-related activities with Burns and other commercial actors.

Open Arms’ involvement in one of the “participatory design” studies alone is estimated to have cost the taxpayer almost $100,000 in departmental operating expenses, over and above the $30 million already provided to Innowell by the health department.

Six months after their first meeting, Burns messaged Handley on 8 April 2019 saying she had spoken to Hodson about RedSix and offering to “make a recommendation to Steph [Hodson] regarding the tech and how it functions.” She continued: “They are doing small pilots of work that is innovative – and also looking at better collaboration across platforms and sites.”

This was a generic summary of the taxpayer funded work Burns was doing with Innowell and Open Arms for Project Synergy, but omitting details about Innowell, her direct involvement in “they” and her numerous conflicts of interest.

When Handley expressed his frustration about the lack of tangible support for RedSix almost a year later, Burns responded by text message on 6 March 2020:

“I’ve Spoken to Steph [Hodson], she will call you but they’re about to offer you a contract so don’t throw the baby out yet. I also thought you were in partnership with Swiss8. If not can you let me know as I’ve been pushing internally at BUPA for your inclusion in a [Joint Health Command] offering.”

BUPA and Request for Tender

Defence’s Joint Health Command had previously signed a multi-million dollar contract for on-base medical support to defence force personnel with one of Burns’ other employers, BUPA. Burns suggested in a message to Handley five months earlier that BUPA might consider designating RedSix as a “charity of choice,” trialling the platform “across a variety of workplace settings” with BUPA’s “wellbeing at work team” or even pitching it to the multinational tech giant Google.

The Commonwealth government’s AusTender website shows DVA officials opened a request for tender on 14 August 2020 seeking to:

“work with a panel of one or more contractors, to provide high quality holistic services, focusing on mental health and wellbeing and ensuring processes, practices and methods of engagement are based on, and respectful of, the needs of veterans and their families.”

After Handley and others were encouraged to submit tenders including commercially sensitive information on their software designs,

the request for tender was closed on 14 October without awarding any contracts. Defence’s HeadStrength app was launched one week later.

Handley told MWM he is “still in shock” after his dealings with Burns and DVA and says the stress profoundly affected his physical and mental health:

“The toll this has had on myself and my family both physically and mentally over the last three to four years has put me in hospital four times and destroyed my faith in the department of veterans’ affairs. This is un-Australian and parallels the behaviour of an organised crime gang. People need to be held to account.”

Since her departure from the Open Arms national advisory committee, Burns has been a member of the National Disability Insurance Agency board and is now employed full-time as the NDIA’s “chief strategy and wellbeing officer.”

When contacted by MWM, Burns declined to respond to questions on her communications with Handley, the overall management of the veteran centric reform program and her proposed Well & Productive CRC. The CRC’s website now lists her as the Acting CEO and says that its mission is “Harnessing human centred, integrated solutions to create mentally healthy workplace and improve productivity.”

Among the other financial inducements paid by DVA to silence criticism and restore the department’s tarnished reputation during the VCR program was a series of “limited tender” contracts totalling $516,500 awarded to another Open Arms national advisory committee member, former Army medic Talissa Papamau, for operating the now defunct ‘Modern Soldier’ Facebook account including “educational resources” and favourable commentary on DVA initiatives.

For Vietnam veteran and Stand Tall for PTS founder Tony Dell, these revelations are

absolutely soul destroying, suggesting DVA staff and consultants involved in the VCR program were corrupt.

“I feel everyone involved should be charged with manslaughter for every veteran who has died since this happened, and we should claw back the hundreds of millions of dollars that could have been used to save lives.”

The Albanese government is expected to table proposed amendments to the “not fit for purpose” veteran entitlement legislation in parliament before the winter recess in July. Advocates have previously told MWM they anticipate the legislative amendments will fail to fulfil the intent of the first recommendation in the Royal Commission’s interim report last year.

Did PwC consult on the final recommendations of the Senate Inquiry into PwC?

This post was originally published on Michael West.

Trucking deaths are rising in Australia amid worries over corner-cutting on safety and driver fatigue. Yet, for whistleblower Roxanne Mysko, exposing it means persecution. Andrew Gardiner with the investigation.

Whistleblowers like David McBride and Richard Boyle incurred the wrath of vengeful bureaucrats despite the existence of protections spruiked as the guarantor of transparency and a bulwark against corruption.

They are not alone. Courageous informants from across Australia have risked all over the years, with decidedly mixed results.

And what of lesser known whistleblowers in, say, the transport industry? Trucking deaths are on the rise in Australia, including among drivers like Billy-Joh Watts, whose tragic death sparked a media stampede at a high-profile inquest in 2022.

Can transport industry whistleblowers expect better protection from the courts and from relevant agencies like the Australian Securities and Investments Commission (ASIC)? Not if Adelaide grandmother Roxanne Mysko’s experience is any guide.

Shooting the messenger

An experienced safety compliance manager, Mysko, has told MWM of bullying, police involvement and court action that threatens to bankrupt and perhaps even incarcerate her in the coming weeks, following a brief and ill-fated stint at Express Cargo Services (ECS) of Port Adelaide.

Roxanne Mysko, road train. Image: supplied

MWM has also independently learned from sources of alleged safety issues at ECS – brought to the attention of the National Heavy Vehicle Regulator (NHVR), including:

• Fatigue among company drivers and subcontractors, who are alleged to have worked up to 26 days straight (the relevant law states drivers must have a 24-hour break every seventh day);
• No safety audits of 70 subcontractors from 2007 to 2020, many in violation of Chain of Responsibility (COR) requirements which began in 2014;
• No licence checks on 70 subcontractors;
• No vehicle maintenance audits over an extended period;
• Speeding by trucks supposedly limited to 90 km/h;
• No documentation for all COR safety procedures for any truck or freight movement anywhere in Australia.

If proven, such breaches of safety law can incur seven-figure fines.

Despite the purported protections of both whistleblower legislation and South Australia’s Work Health and Safety Act, Roxanne’s life was upended when ECS terminated her contract after just a few weeks on the job. In the weeks following her dismissal, sources say, it got much worse.

Roxanne’s unceremonious departure from ECS turned her from a paid safety monitor to an industry outsider with plenty to say.

What protections?

In its pamphlet on the subject, ASIC says protections under the Corporations Act and other legislation are designed to “encourage whistleblowers to come forward with their concerns and protect them when they do (so they can) play an important role in identifying and calling out misconduct and harm to consumers and the community.”

Angered by her sacking and confident she had full whistleblower protections, sources say Roxanne continued to liaise with safety authorities like the National Heavy Vehicle Regulator (NHVR). MWM has independently learned that she also sent copies to a partner company of ECS.

But the extent of those protections is anything but clear. In later correspondence with Roxanne viewed by MWM, barrister Christian Haebich expressed his “doubt that (Roxanne’s) post-employment communications were protected by the whistleblower laws.” Roxanne disputes this, citing opinions to the contrary from other legal practitioners.

ASIC has since made it clear in correspondence seen by MWM that copying the ECS partner company was a mistake: “that email was not sent to an eligible recipient” under whistleblower protections. In other words, what she wrote was open to potential court action by ECS.

Within days, MWM learned that ECS had a copy of her missive and, via court action, secured a warrant for police to seize what she described as massive quantities of documents from her computer and phone. The company, sources said, also brought civil action against her in the Adelaide Supreme Court based on their claim of breach of contract, defamation, injurious falsehood, and tortious interference.

Persecuting the whistleblower

Nearly four years and one appeal later, Roxanne has been hit with $350,000 in legal fees by her erstwhile employer (meaning likely bankruptcy) and, sources say, the possibility of prison time on Contempt of Court charges after she allegedly sent another email (in violation of a court order) to the same ECS partner company she says breached her identity.

Meanwhile, sources told MWM that the NHVR appears to have given ECS a ‘heads-up’ that they were coming to look at their operations before failing to take any meaningful action against the company.

After approaching ECS for comment, the company’s lawyers sent MWM excerpts of a court order preventing Roxanne from sharing her allegations, warning that “any other person who knows of this order and does anything that helps or permits [Ms Mysko to disobey it] may be … punished.”

MWM is not suggesting NHVR, ECS or its partner company have acted unethically or in violation of workplace or transport safety laws, and unless stated, has established the alleged facts around ECS’ safety record, opinions on the extent of whistleblower protections and subsequent conduct by the company, its partner and NHVR independently of Ms Mysko.

Failing whistleblower legislation

The case of Roxanne Mysko brings into sharp focus the limitations of whistleblower legislation.

For one thing, protections would appear to be at their maximum while you remain employed by the employer you’re reporting, as Mr Haebich suggested in the letter seen by MWM. In many instances, would-be whistleblowers are less likely to turn on an employer if they still work there while, conversely, being dismissed can be the very catalyst for coming forward.

Should losing your job curtail your rights and protections as a whistleblower?

Sources say Roxanne’s mistake in contacting an ECS partner company not covered by her protections stemmed in part from her not knowing the ‘fine print’ around whistleblowing, details which are often decipherable only by paying through the nose for a lawyer. Roxanne is not a woman of means, and it appears the last thing she was thinking of when alerting others to what she saw as safety issues at ECS – a public service, in her eyes – was having to pay for the privilege of doing so.

It turns out whistleblowing can be a costly proposition: it could cost you in lawyer’s fees before you proceed, and it could cost you much more if you get it wrong.

For her trouble, sources have told MWM that Roxanne and her family have been allegedly harassed. She’s had several breakdowns, lost her income, seen her job prospects severely diminished, incurred a six-figure debt, and faces possible incarceration for Contempt of Court. Roxanne told MWM:

I don’t laugh anymore, and have withdrawn from what was a very social busy life. I am now a recluse.

What’s more, Roxanne faces more bills if she is to mount privately-funded action to redress at least some of what she’s gone through.“You may have been protected (while employed by ECS) – such that your termination may have been unlawful,” Haebich wrote in correspondence independently confirmed by MWM.

She is in no position to privately fund such a counterclaim, and is on the lookout for pro bono representation.

While sources say the well-resourced ECS was able to terminate, achieve a police raid of and sue its former compliance manager within weeks of her unearthing what sources say is a mountain of safety malpractice, Roxanne Mysko was hamstrung in her ability to fight back. Not only by a lack of funds (she self-represented in court) but by the mistakes she made under whistleblower laws, which can confound all but a select few.

Meanwhile, those she thought would be in her corner – such as the NHVR – did little to address the alleged safety issues, sources add.

The system was quick to sanction Roxanne Mysko over a few pages of correspondence, but on a far bigger issue – the safety of Australia’s truck drivers – it’s claimed that the machinery of regulatory action has scarcely trembled.

“Let the whistleblower beware, lest they suffer my fate,” Roxanne admonished.

Editors note: MWM contacted NHVR for its position on this story, but the agency declined to comment for legal reasons.

Richard Boyle hopes dashed | The West Report

This post was originally published on Michael West.

The reasons of the South Australian Court of Appeal on why Richard Boyle will face criminal charges will make every Australian (except the Australian Tax Office leadership) sick in the stomach. Former senator Rex Patrick reports.

Richard Boyle is a Whistleblower. Justice Doyle, with Justices Doyle and David agreeing, declared:

The [ATO] accepts that the appellant is a whistle-blower as that term is commonly understood. [Richard] disclosed information to an authorised person pursuant to the terms of the Public Interest Disclosure Act. It was common ground on appeal that [Richard’s] conduct in disclosing the information attracted an immunity from criminal prosecution under the Act. [Richard], however, faces criminal charges, not for the disclosure of information he believed needed to be disclosed, but for his conduct in unlawfully gathering evidence he considered would support his disclosure …

They went on to explain that Richard Boyle formally blew the whistle.

It was common ground that [Richard], on 12 October 2017, lodged a public interest disclosure with the ATO and that it complied with the requirements of the Act. Information contained within the [disclosure] attracted the immunity.

Botched

The Justices then confirmed the ATO botched the processing of Richard’s disclosure.

[Richard’s disclosure] was allocated to an authorised recipient for investigation pursuant to s 43 of the Act. His [disclosure] was not dealt with appropriately. By letter emailed to [Richard] on 27 October 2017, the authorised recipient advised that he had discontinued the investigation pursuant to s 48(1)(c) of the Act, having determined that the disclosure did not concern serious disclosable conduct. It is accepted for the purposes of this litigation that this decision was incorrect.

The Court’s finding is consistent with that of the 2020 Senate Economics Committee (which I was a member of) which found the disclosure investigation was ‘superficial’.

Conclusion of the Senate’s Economics Legislation Committee

Vindicated

The Court also recognised the conduct Richard blew the whistle on – the improper use of Tax Office garnishee notices to strip small business bank accounts of funds – was found to have been occurring.

On 9 April 2018, the Australian Broadcasting Corporation (“ABC”) presented a story called ‘Mongrel bunch of bastards’ as a Four Corners program. It featured taxpayers talking about their adverse experiences with the ATO. [Richard] appeared as a whistle‑blower.

[SUPPRESSED]

In March 2019, the Inspector-General of Taxation and Taxation Ombudsman released a ‘Review into the Australian Taxation Office’s use of Garnishee Notices’. The review was commenced “to maintain community confidence in the administration of the tax system after serious allegations were made about the [ATO’s] inappropriate use of garnishee notices on small businesses” by a current and former ATO officer on the ABC Four Corners program on 9 April 2018.

Richard blew the whistle. His disclosure was not investigated properly until after Four Corners revealed the conduct and the then Minister commissioned an independent investigation. That investigation vindicated Richard’s concerns.

But he still gets to face the music.

The ‘making’ of a Criminal

As Justice Lovell put it:

The main issue on appeal is whether the appellant’s conduct in gathering evidence to support his disclosure of information also attracts the immunity under the Act.

Much of the case, and potentially the following decades of Richard’s life, turned on the meaning of the word “making”. The legislation states:

If an individual makes a public interest disclosure the individual is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the public interest disclosure; …

Noting the primary issue identified by the Court, the Human Rights Law Centre (HRLC), who supported Richard in his case, argued the immunity applied, but thoughtfully proposed that such an immunity should not be unlimited.

They advised the Court “not every act preceding a [disclosure] would enjoy the immunity. The immunity was limited and would only exist if there was a nexus between the act and the disclosure, and only where the act is reasonably necessary for the making of a valid disclosure.”

HLRC went on to submit that “the use of the expression “making” denotes a process rather than a focus on the actual moment of disclosure. A disclosure cannot be made, they submitted, without the steps being made to prepare it. Thus, those preparatory steps with sufficient nexus to the disclosure should be regarded as part of “making” the disclosure.”

Light Verb, Heavy Verb

It’s a debate most regular people would respond to with a “what the …” but it is what so often happens in courts. Richard’s immunity came down to an English language debate in the court room. Justice Doyle summarised that debate:

Starting with the ordinary meaning of the verb “make”, a survey of dictionary definitions suggests it may be used in a range of differing senses. However, of relevance to the present matter, those meanings include meanings which are consistent with the arguments made by each of the parties. Consistently with [Richard’s] argument, “make” may mean to construct or create. Consistently with the [ATO’s] argument, it may also mean to bring about or cause to occur. Predictably, but unhelpfully, the appropriate meaning of the word “make” will often depend upon the context in which it is used, and in particular the noun which is the object of the relevant phrase or sentence. Related to this last observation, “make” is sometimes described as operating as a “light verb”; that is, a verb which has little semantic content of its own, but which forms a predicate with – and takes its meaning from – some additional expression, which is usually a noun. Whilst [Richard’s] meaning of “make” (construct or create) perhaps gives the word greater semantic force of its own, the [ATO’s] meaning (bring about or cause) is more consistent with its use as a light verb.

The Court decided ‘light verb’ was correct in properly understanding the scope of the whistleblower protection. “Making” in the provision in the Act only refers to the act of submitting the disclosure. It’s only at the point of submission that the immunity kicks in.

Richard will now face trial. A criminal trial.

Drop the Charges

There you have it. The clear lesson – DO NOT BLOW THE WHISTLE unless you are a barrister of King’s Counsel.

It’s a fundamental tenet of the rule of law that no one is above the law. But we make exceptions. We let the police ‘break’ the law catching up to a speeding vehicle without alerting the speeding driver by the activation of lights and sirens. We grant criminal immunity to ASIO officers when they are involved in a special intelligence operation. 

We need laws granting immunity for people making well intended, but unlawful, mistakes in preparing a whistle blowing disclosure. We also need a Whistleblower Protection Authority to assist whistleblowers know what the limits are.

In the meantime, Attorney-General Mark Dreyfus, who wrote the broken 2013 laws that have failed Richard, could stop this tragic prosecution at any stage. He could do so recognising that pursuing Richard is not in the public interest – that this whole thing is a Shakespearian tragedy, and one that has a huge ‘chilling’ effect on whistleblowing in Australia.

But instead of acting in the public interest, Dreyfus sits idly in his office doing nothing. Surely he has failed to meet his public interest obligations as Attorney-General of Australia.

Richard Boyle appeal fails. Another deep blow for whistlebower protections.

This post was originally published on Michael West.

In a unanimous judgment, the South Australian Court of Appeal has stripped ATO Whistleblower Richard Boyle of immunity from prosecution. Rex Patrick reports from the Court.

The court has effectively declared that Australia’s Federal whistleblower protection laws are completely broken.

Richard Boyle blew the whistle on the ATO’s egregious use of garnishee powers to strip funds from small business bank accounts. The powers were supposed to be used only as a measure of last resort, but the ATO was using them as a measure of first resort to meet their leader’s tax collection key performance indicators.

Richard blew the whistle only to be prosecuted for breaking laws during the preparation of his public interest disclosure.

It’s akin to someone jay-walking to save a child on the other side of the road, and then being prosecuted for jay-walking.

Richard mounted and lost an immunity argument in the SA District Court. He appealed that loss to the SA Court of Appeal. The Court dismissed his appeal. The judgment reasons have been temporarily suppressed to allow Richard’s legal team to ensure nothing in the judgment will prejudice his criminal case, which will now recommence in the SA District Court.

Court crushes whistleblower protection in Richard Boyle, Tax Office case

The dismissal is not an indictment on Richard Boyle but rather on the poor state of our whistleblower laws.

The Albanese Government has acknowledged that the Public Interest Disclosure Act is flawed, but it is content with Richard being persecuted because of those broken laws.

The judgement comes just a month after war crimes whistleblower David McBride was marched off the jail for calling out the truth about Army misconduct in Afghanistan.

Afghan war crimes whistleblower David McBride sentenced to prison

Attorney-General Mark Dreyfus has the power to drop Richard Boyle’s prosecution with the stroke of a pen but has declined to do so. He seems happy for Richard to unfairly face the music. He seems happy to send the message to everyone – “don’t blow the whistle”.

Dreyfus has failed to exercise his powers to drop Richard’s prosecution. Dreyfus has failed to strengthen our whistleblower protection laws. Dreyfus has failed in setting up a Whistleblower Protection Authority.

Dreyfus is failing our democracy.

Lendlease whistleblower and lawyer Tony Watson – the law is failing to protect whistleblowers

This post was originally published on Michael West.

The Morrison Government encountered Opposition scorn for failing to include claw-back provisions in its JobKeeper program. Yet the Albanese Government is making the same mistake with its ‘JobGiver’ submarines program. Rex Patrick reports.

On 23 November 2021, then-opposition Treasurer Jim Chalmers rose in the House of Representatives and delivered a fiery speech on the performance of the Liberal Coalition Government.

When he spoke about managing the economy, Chalmers mentioned ‘JobKeeper and declared it the “defining example” of Coalition economic mismanagement.

“JobKeeper was a great idea,” he said. “Frydenberg, the butterfingers of Australian politics, got his hands on it and he turned a good program into a program that wasted tens of billions of dollars, and that’s why the Financial Review wrote an article headlined ‘Frydenberg fires JobKeeper missile at himself’. If you look at that piece in the Financial Review, I think the key conclusion is that they describe the current Treasurer as ‘lighter than helium’.”

He went on to describe the economy as a piece of software: “Wasting money is not a bug in this government; it is a feature of this government.”

Three months later, opposition leader Anthony Albanese weighed in, describing to the House a Treasurer who had “not put in place appropriate protections for taxpayers’ interests when it comes to the JobKeeper program, resulting in

over $20 billion going to companies that were increasing their profits.

And that leads us to ‘JobGiver’.

The money sinkhole

On 13 March 2023, Prime Minister Albanese announced in San Diego that the AUKUS submarine program would cost a mind-blowing $368 billion. That’s $13,850 per man, woman, and child in Australia. And that’s not including the cost of managing the spent nuclear fuel for 100,000 years.

At the time he offset the cost issue with a ‘jobs at home’ pitch. “The program will create around 20,000 direct jobs over the next 30 years across industry, the Defence Force and the Australian Public Service including trades workers, operators, technicians, engineers, scientists, submariners and project managers.

In early September 2023, it was revealed that, as part of the program, Australians were to gift almost $4.7B in taxpayer’s money to grow the US submarine industrial base to enable the transfer of US Virginia attack-class submarines to the Royal Australian Navy.

Along with a similar contribution to the UK, ‘JobGiver’ was born.

JobGiver

Shortly after the announcement, I FOI’ed the Submarine Agency for “The agreement between Australia and the United States that goes to Australia making significant financial contributions into the Submarine Special Activities Account”.

I was concerned about the T’s and C’s. How would the money be spent? When would the money be paid to the US? Was there a clawback provision?

The request was answered with a big fat “access denied”.

Access denied (Source: FOI)

The FOI matter is on appeal, but Senator David Shoebridge has been inquiring into the details at Senate Estimates. In an exchange with Vice Admiral Jonathon Mead, the head of the Australian Submarine Agency, he unhelpfully refused to confirm that the $4.7B would be returned to Australia if the US decided not to provide the Virginia submarines in 2035.

Most likely, in other words, there is no clawback, just like ‘JobKeeper’.

AUKUS risks unveiled – is Australia sleepwalking into a submarines disaster?

A real risk of default

The clawback matters, because

the risk the US will not deliver a submarine to Australia is high.

Whilst the US Congress passed into law, via the 2024 National Defense Authorization Act, permission to transfer the first two of three to five Virginia class submarines to Australia, the approval contains a caveat.

Before any US submarine can be transferred to the Royal Australian Navy, the US President must certify to the Congress that he or she is of the view that the transfer is not inconsistent with US foreign policy and national security interests.

They’re ‘Humpty Dumpty’ words that will mean just what the President chooses them to mean – nothing more, nothing less. A future US President can kill the deal for subjective reasons at any time.

But there’s a more objective threat. The US industrial base is not building enough submarines for its own needs, let alone ours. The magic build rate requirement for the US is 2.3 submarines per annum (to meet its attack and ballistic submarine needs, as well as Australia’s). Right now, the build rate is only 1.4, and with issues also plaguing their maintenance shipyards, there’s not a lot of optimism that it’s going to get anywhere near the 2.3 needed (apart from the blind optimism inside the Australian Submarine Agency and the Defence Minister Marles’ office).

But wait, there’s more

Of course, there are also risks in the UK ‘JobGiver’ payment we will make, again without a claw back. They’re unlikely to walk away from us on account of the perilous state of their submarine  industry,

but they reliably deliver submarines that are late and over budget.

The UK needs our money to assist them deal with their own moribund state. But their moribund state is exactly the reason they should not be our partner.

The scam within a scam. US, UK officials are flying high on the AUKUS teat.

When fending off his ‘JobKeeper’ fiducial failure, Frydenberg was at least able to say that the wasted taxpayers largely went back into the Australian economy. Chalmers won’t be able to say that of the ‘JobGiver’ money that’s going to the US.

I say Chalmers, because Albanese’s unlikely to be around when the US say “sorry” to us. But there’s some chance that Chalmers will be Prime Minister in 2034/5. Whoever is shadow Treasurer at that time won’t be calling Chalmers ‘Helium Man’, like he labelled Frydenberg – rather it will be ‘Hydrogen Man’, on account of the fact that hydrogen is even lighter than helium.

Will AUKUS FAUKUS?

This post was originally published on Michael West.

Was PwC commissioned to write the recommendations of the Final Report of the PwC Inquiry into PwC? Michael West reports.

It was like the footy player whose team had driven all the way up the field only to spill the ball over the try line.

After 14 months of inquiry, 60 submissions and explosive evidence of cover-ups, massive fees for no service, countless lies, and damning evidence that the privatisation of government has miserably failed, the Senate Committee on Finance and Public Administration has handed down its final report into ‘Management and Assurance of Integrity by Consulting Services Management and Assurance of Integrity by Consulting Services‘.

Otherwise known as the PwC Inquiry … it’s a whitewash.

The Report itself is fine. It goes into the Big Grift in detail, exposing the untenable conflicts of interest, rorts like the exploitation of Legal Professional Privilege, and much, much more.

It’s the politics that are the problem. The recommendations. The Committee, stacked as it is with Liberal and Labor people, has delivered 12 recommendations while PwC itself continues to refuse to deliver information requested by the senators.

There is nothing in this feeble set of recommendations to address the systemic problems and egregious waste which have arisen from the privatisation of government since Big 4 consulting fees began to go ballistic with the government of Tony Abbott in 2014. Okay, a couple of the disclosure measures are worthwhile but the rorts will henceforth roll on.

But for Pocock and O’Neill

Many readers will have been watching in admiration as a couple of the senators, principally Barbara Pocock and Deborah O’Neill held Big 4 feet to the fire during committee sessions. This was our politicians at their best. Alas, although the Greens chapter is the Report – “A Very Public Swindle” – is worth a read, the recommendations have been compromised because both Labor and the Coalition control the Committee and get millions of dollars in donations each year from EY, PwC, KPMG and Deloitte.

The Big 4 has the political duopoly stitched up. Even this week, as Stuart McCarthy broke the story of the Department of Veterans Affairs slotting $73m to PwC to connive on how to avoid a Royal Commission, how *not to reform”, this committee and its findings present a case study in how to dodge reform.

Paid to Not Reform: Veterans’ Affairs chucks $73m at PwC to dodge Royal Commission

It should be said, despite many being crestfallen at the impotence of the recommendations, that the whole affair has been worthwhile in exposing the rorts, in bringing accountability. The effect of this, even as PwC is already plotting its comeback to government consultancy to milk the fat cow of bureaucracy, will be to moderate behaviour, to make procurement a better process.

Yet the essential failures of the outsourcing of government remain; chiefly the massive conflicts of interest and the cost to the public purse. How can it possibly be more efficient to privatise government to people charging $500 per hour when public servants are already paid $50 per hour to do their job anyway?

Ziggy plays for time: PwC’s dual ‘independent reports’ a dual whitewash

Conflicts of interest

The critical conflicts of interest are that the Big 4 run three businesses: consulting, audit and tax advisory. There is a conflict between the latter two as an auditor has to sign off financial statements as ‘true and fair’ while the tax advisor across the Chinese Wall of gossamer tries to push the tax laws and accounting to the very limit to rake profits offshore for their multinational clients.

Then as evinced in the Inquiry, PwC well and truly breached its conflicts when it consulted to government on new tax laws while it was advising its MNC clients on how to skive out of paying tax by grifting those very laws.

Auditors are meant to adhere to professional standards, and tax lawyers have their legal obligations, but consultants? Who regulates consultants? Nobody. And nobody effectively regulates the Big 4 because their are too big and too powerful. Imagine ASIC bringing a case against PwC, Deloitte, EY or KPMG?

Accountants of Fortune

After warning for years that this power and the conflicts of interest – indeed and poor audit standards – was a looming train wreck, the government turbocharged the train.

The very first story we published when establishing MWM in mid-2016 quoted a former adviser and tax expert at PwC and EY, George Rozvany:

“The Big Four have, under a Rasputin-like cloak of illusion strayed from their original and critical role of verifying the accuracy of financial accounts for all stakeholders, to be “accountants of fortune” merely representing the accounting position for multinationals and developing aggressive international tax avoidance practices.”

Oligarchs of the Treasure Islands

Meanwhile, government consulting revenues was exploding – delivering double-digit increases in annual revenue at all the firms. The gouge on Defence in particular is epic, with 2,000 consultants roaming about the Department down in Canberra with their special passes.

Yet it has also infected almost every part of government. As Stuart McCarthy said this morning:

“The long-awaited Senate inquiry report on the “big four” consultancies and their multi-million dollar contracts with federal government departments has been published, with 12 recommendations calling on PwC to publicly name the executives responsible for the Australian Taxation Office confidentiality breach, and improved regulation and management by the consulting industry and government regulators.”

“During the inquiry, Labor Senator Deborah O’Neill and Greens Senator Barbara Pocock railed against the big four’s “toxic culture” in numerous media interviews. Despite all this colour and movement, there is no hint of accountability for the departmental secretaries and other senior government officials who approve and manage these contracts on behalf of the taxpayer.”

Veteran scamming

No mention of the billion-dollar “veteran-centric reform” scam is made in the inquiry report. Conceived to forestall the Royal Commission into defence and veteran suicide while retaining the “byzantine”, “archaic”, and “not fit for purpose” legislation at the heart of the veteran suicide crisis, and which the Royal Commission has since recommended be overhauled anyway.

“PwC was paid $73 million for a “reform” program that resulted only in a bigger, more expensive and equally dysfunctional department while exploiting their access in the department to pursue their commercial interests in the dodgy health information technology start-up Innowell.

“While it’s true PwC’s scamming of the veterans affairs portfolio took place under the Turnbull-Morrison government, the Albanese government is perpetuating the scam. The departmental spend on annual “upgrades” to the IT and management systems purportedly “reformed” at a cost of $1 billion has not changed, indeed its operating costs have increased.

“Current veterans affairs minister Matt Keogh – a former Community and Public Sector Union delegate – has expanded the department by 500 staff while thumbing his nose at the Royal Commission’s recommendation to fix the legislation that drives his department’s bureaucratic dysfunction.

What’s the scam? A bigger, more expensive self-licking ice cream,

while nobody is held to account for a billion dollars in taxpayers’, money, flushed down the drain.

This post was originally published on Michael West.

Steven Miles would blanch at the comparison, but there are some unfortunate parallels that can be drawn between the Queensland Premier and foundering UK Prime Minister Rishi Sunak. Paul Syvret reports. 

On Tuesday, Stephen Miles presided over his first – and if the polls are to be believed, his last – state budget as Premier, ahead of the Queensland election on October 26. 

Towards the end of the carefully choreographed production – where almost every initiative of note had been buffed up and leaked to the media well in advance – his Treasurer, Cameron Dick, made a rather desperate plea. 

The looming election, Dick said, was “not a referendum on the last nine years,” and implored voters “not to express an opinion about the past”.   

Good government starts today … in heaven

Judge us not on what we’ve done (or not done), but instead look at what we’re going to do … and look at all the billions in handouts that will rain down over the next 12 months. Good luck with that – just ask Tony Abbott how the infamous “good government starts today” line went for him after narrowly surviving a leadership spill. 

Meanwhile, on the other side of the planet, a doomed Sunak was at the Tory Party campaign launch, announcing billions of pounds in unfunded tax cuts and all manner of other policy fixes which had somehow eluded the Conservatives for the past decade, with his Labour opposition describing the manifesto as the “most expensive panic attack in history”, and accusing Sunak of “cosplaying [failed former PM] Liz Truss”. 

Like Sunak, Miles’ relatively recently ascended to the big chair in Queensland following the resignation of Annastacia Palaszczuk in December. 

Like Sunak, he inherited a government that was looking tired and decidedly shop-soiled; in Queensland’s case facing major challenges on hot-button fronts such as public health, social housing, law and order and the ever-present cost of living crisis. 

Chin up chaps! Better than Rishi and the Tories

Throw into that mix some truly ham-fisted planning for the 2032 Olympics, and inept management of major infrastructure projects, and it’s easy to see why bookmakers have the Liberal National Party at un-backable odds to romp home in October. 

While the Tories in Britain are, according to the polls, facing an electoral wipe-out following 14 years of misrule (with five different Prime Ministers over that period), the Brexit debacle, crumbling public services, COVID mismanagement and a faltering economy, the prospects for Labor in Queensland are dire, but unlikely to be a repeat of the electoral Armageddon that removed the Bligh Labor government in 2012.

That bloodbath saw Labor reduced to just seven seats in Queensland’s 89 seat parliament. 

Save the furniture!

Miles and his Treasurer have in effect crafted a ‘save the furniture’ budget – a big-spending program where every voter wins a prize. There are stamp duty cuts, 50 cent public transport fares, $1000 power rebates, car registration reductions and a freeze on all government charges. Money is also going to food relief programs, law and order, a 10 per cent lift in health funding and $3.1 billion into public housing.

A case of fiscal anaesthesia for political pain if you like. 

Unusually for an Opposition in such a commanding position, the LNP said in advance of the budget that it would – in a clear attempt to neutralise Labor’s cost of living sugar hit – support every initiative. The scars from the Campbell Newman loss in 2015 – following three years of austerity, brutal public service cuts and an arrogantly libertarian approach to government – are still raw. 

Crisafulli, Miles and Dick

In this respect the “not Labor” (very) small target approach adopted by LNP leader David Crisafulli also has a fair bit of “not Campbell Newman” as subtext. 

This will tend to limit their budget attack lines to accusing Miles and Dick of short-termism – focussing on the next four months rather than the next four years. 

In short, while far from visionary, the budget does no real harm. Yes, the healthy surpluses – buoyed by bonanza coal royalties and stamp duty receipts – of the last couple of years will disappear, to be replaced by modest deficits. 

And a deficit (2024-25) of $2.6 billion in the context of a $500 trillion economy and annual receipts of $88 billion is not cause for alarm. 

But … for the consultants

These deficits are largely the result of an expected slump in royalty revenues and the absence of any real structural savings measures beyond cutting back on external consultants and contractors. 

Then there is the four year capital works program totalling $107 billion, with huge licks of money for energy infrastructure, new hospitals, transport investment, and of course the Olympic Games. This will push gross debt up to about $110 billion in four years’ time, which still represents only about 20 percent of GSP. 

Two things here: firstly Queensland is the only state in Australia to have fully funded its long-tail superannuation liabilities, and secondly it still holds an extensive suite of major public assets such as ports and power generation giving it a much stronger balance sheet than most. 

We are not they

Still, the budget is unlikely to be a panacea for the Miles government. For the average voter who pays scant attention to daily politics – let alone the intricacies of fiscal aggregates – it provides not inconsiderable relief, albeit short-term.  But the LNP has pledged to honour the largesse, so for cranky punters its winner winner mud crab dinner no matter which way they vote. 

Working in the government’s favour though is the LNP’s ‘nothing to see’ here camouflage campaign which, at least to date, has offered voters nothing in the way of vision or concrete policy beyond “we’re not the other mob” (and, don’t mention the war, but were not Campbell Newman either). 

As The Guardian put it on Tuesday night, the budget has all the subtlety of a “going out of business sale”.   At this point though it would be fair to say that while Sunak is presiding over a liquidation sale, Steven Miles is hosting more of an end of season stock clearance. 

The Palaszczuk ultimatum and the Miles ahead for Queensland, the “odd dichotomy” of Australian politics

This post was originally published on Michael West.

The Department of Veterans Affairs paid consultants PwC $73 million to forestall a Royal Commission as part of a billion-dollar program intended to avoid reforming “not fit for purpose” legislation. Stuart McCarthy reports.

The Department of Veterans’ Affairs (DVA) paid disgraced consulting firm PwC (PriceWaterhouse Coopers) $73 million to implement a “veteran centric reform” program aimed at forestalling the Royal Commission into Defence and Veteran Suicide.

More than $1B in public expenditure sunk on this program has since become the justification for the government to avoid the “urgent” legislative reform recommended in the Royal Commission’s interim report. The program was used as an opportunity to promote a discredited software platform by health information technology (HIT) start-up company Innowell Pty Ltd, co-owned by PwC and established using a $30 million grant from the federal health department.

Public advocacy for the Royal Commission began in earnest around the time of a 2015 Senate inquiry into the mental health of defence force personnel. These efforts were supported by media coverage highlighting a dysfunctional veterans’ affairs bureaucracy that the Productivity Commission found in 2019 was “not fit for purpose”, requiring “fundamental reform” to its “byzantine” and “archaic” legislation.

Under the existing legislation, veterans are required to submit multiple claims for conditions resulting from the same injury or illness, a process that often takes months or years. This bureaucratic dysfunction has long been identified as one of the key factors contributing to the veteran suicide crisis.

Veteran Suicides Investigation

Days before a six-month investigation ($) into veteran suicides by award-winning journalist Ruth Lamperd hit the front pages in 2016, Prime Minister Malcolm Turnbull called a press conference to announce a National Mental Health Commission (NMHC) review into suicide prevention services for veterans and families and re-announce several other initiatives from the previous budget.

The NMHC was chaired by Professor Ian Hickie from Sydney University, who is notorious for criticising general practitioners and other primary health care providers for their involvement in patients’ mental health care.

Three days before Turnbull’s press conference, DVA awarded PwC an $8 million contract to act as the department’s “primary strategic partner” in developing a second pass business case for the proposed “veteran centric reform”(VCR)  program.

The Department was allocated funding in the 2016-17 Budget to begin planning to significantly improve its policies, provision of services, and information & communications technology (ICT) infrastructure. One of the key assumptions of the business case was that “no significant legislative reform” would be required.

Actuarial modelling included in the business case suggested “reforms” to business processes, ICT and “departmental culture” would realise $500 million to $1 billion in departmental cost savings over the next 50 years, or $10-20 million per annum.

The suicide ‘business case’

Following the government’s April 2017 approval of the business case, DVA agreed to a $73M deed of standing offer with PwC, for consulting services to assist with the design and implementation of VCR.

The initial $27.5M contract in 2017-18 was the single largest ($) government consulting services contract awarded that year, representing a quarter of the Commonwealth’s total spend on consulting services. KPMG was awarded $7.3M in contracts for VCR-related consulting services including “assurance activities.”

The first $166M tranche of the VCR funding was announced by Turnbull’s Veterans Affairs Minister, Dan Tehan, in the 2017-18 budget. A 2021 Australian National Audit Office report shows that $653.7M was spent in the first three years of the six-year program.

Analysis of this report, government budget papers, ministerial media releases and DVA annual reports suggest the program’s total cost exceeded $1 billion.

There is a discrepancy of more than $300 million between the commitments identified in the budget papers and the program’s total estimated cost, largely attributable to the contracted labour hire needed to keep the department running while the program was being rolled out.

Additional staffing costs were not included in the business case. ANAO has thus far declined to audit the rest of the VCR program subsequent to its 2021 report.

Among the attendees at Tehan’s parliamentary house office party on budget night in May 2017 was Hickie’s colleague Professor Jane Burns, who declared of the $166M announcement over a glass of champagne “winners are veterans and families.”

Burns, who chaired the DVA veterans’ and families’ counselling service national advisory committee, is the co-founder of the HIT start-up company Innowell.

Innowell Pty Ltd

Innowell’s primary business venture was the Project Synergy software platform, initially developed using $5.5M in federal health department funding,

based partly on the discredited concept of gamifying a suicide prevention phone app.

As the initial funding dried up, Hickie publicly lobbied Turnbull for further public funding in the lead-up to the 2016 federal election.

In 2017 the health department awarded a $30M non-competitive grant to a PwC/University of Sydney joint venture to continue Project Synergy.

Innowell was registered as a private company earlier that year. Burns’ co-founder was PwC partner Kristin Stubbins, who later became the company’s acting Australian chief executive.

Weeks before the $30M grant was awarded, a 45% Innowell shareholding was given to PwC, with 45% going to the University of Sydney, 5% to Hickie and 5% to Burns. Turnbull later appeared in a live promotional video for Project Synergy with Burns and Hickie,

without declaring Innowell was established as a private company using public funds.

Malcolm Turnbull, Dan Tehan and Sussan Ley at a press conference addressing veteran suicides in August 2016.

Failed software trials

DVA clients and other vulnerable groups were used to trial Innowell’s software platform under Burns’ oversight as the national advisory committee chair and during the VCR rollout managed by PwC consultants.

Despite an independent academic report finding in 2019 that there was no evidence the trials proved the software platform was effective, PwC publicly stated that the trials were “successfully delivered,” providing commercialisation and investment opportunities. The Innowell website now says the company “provides research-validated digital tools and personalised insights to connect your people to the support they need when they need it.”

Hickie has complained that the current Senate consulting services inquiry poses a  “clear danger … that unnecessary and preventable harms are caused to many rather innocent bystanders.”

He was awarded an AM on Australia Day this year for “distinguished service to psychiatric research and reforms as an advocate for improved mental health care and awareness.”

Royal Commission

The Royal Commission was eventually established in 2021 after a petition was signed by hundreds of thousands of members of the public. Then a motion was supported unanimously in both houses of parliament.

The first “urgent” recommendation of its interim report last year was fundamental reform to the dysfunctional legislation identified in a succession of previous reports, including the Productivity Commission. The same dysfunctional legislation the government sought only to band-aid with the billion-dollar VCR program. Among the hundreds of Royal Commission witnesses was DVA medical adviser Dr Felix Sedal, who testified at a public hearing that the

‘reformed’ departmental IT system ‘was harder to use than the paper files.’

But the Albanese government is now resisting these calls for fundamental legislative reform, on the perverse basis that it would be too expensive.

Sources involved in the legislative consultation process announced by current veterans’ affairs minister Matt Keogh in response to the Royal Commission’s interim report say the minister intends to retain the Military Rehabilitation and Compensation Act – an inherently complex piece of legislation that retains the “archaic” processes identified by the Productivity Commission – with only minor amendment, for the sake of political expedience and concern over the cost of introducing new ICT systems and staff training necessitated by more fundamental reforms that would meet the needs of injured veterans and their families.

Keogh has publicly highlighted the government’s efforts to rebuild the Australian public service after years of outsourcing by the previous government.

The former Community and Public Sector Union delegate in 2022 increased DVA staffing by 500, at a cost of $234M, with a further $87 million to “modernise IT systems.”

No cost savings

Analysis of these figures shows that, rather than saving the department the $10-20 million per annum predicted in the PwC business case, the actual outcome of the $1 billion VCR program has been an increase in departmental operating costs of around $60-124 million per annum.

Australian Peacekeeper and Peacemaker Veterans’ Association chairperson Ian Lindgren says he is “stunned” by Keogh and his department’s lacklustre response to the Royal Commission’s recommendation for legislative reform, telling MWM: 

We believe the proposed legislation will fail to meet the Royal Commission’s recommendations.

“The ‘simplified’ legislation will continue to create the angst, complexity, and trauma which contributes to suicidality in the defence and veteran community.”

Lindgren participated in a “multi-act working group” led by senior DVA officials, but says the “purported consultation process” prompted him to withdraw on the first day of the activity. He says key veteran advocates “have been told that we will not know which elements of the recent consultation will be incorporated until the draft legislation is tabled [in parliament].”

Royal Commission chair Nick Kaldas wrote in February this year:

“It appears there has been a catastrophic failure of leadership at a government level and within the military to prioritise the urgent reforms and implement effectively the previous recommendations required to deliver improved health and wellbeing outcomes for defence personnel and veterans – and, as such, the senseless loss of life continues today. It is a national disgrace.”

With a veterans’ affairs minister clearly more concerned about protecting the interests of his CPSU cronies than he is with properly reforming his “not fit for purpose” department, that same catastrophic leadership failure is now afflicting the Albanese government.

The Senate Consulting Services Inquiry’s final report is expected to be published this week, while the Royal Commission’s final report is due in September.

Ziggy plays for time: PwC’s dual ‘independent reports’ a dual whitewash

This post was originally published on Michael West.

New caps on international students coming to Australia will result in job losses and less money for research, and impact university rankings. But how will the caps work? Peter Hurley and Melinda Hildebrandt investigate.

Just before the May budget, the federal government made a surprise announcement: it will introduce caps on the number of international students in the country.

It is fair to say this plan is really worrying some Australian universities.

This is because international education is a vital source of funding for Australia’s universities. Universities collected about A$8.6B from international students in 2022 – more than a quarter of all revenue.

Given the sums involved, the introduction of caps has the potential to have the most significant impact on Australia’s tertiary education system in decades. But a major unanswered question is what the caps will be and how they will be calculated.

What was announced?

Education Minister Jason Clare introduced legislation to parliament on student caps almost immediately after the budget was released. This would provide ministerial powers to regulate international education in Australia by:

• pausing the registration of new providers and new courses
• limiting the enrolments of overseas students by provider, course or location, over a year
• automatically suspending and cancelling courses.

This comes as the government seeks to reduce net overseas migration (the increase in the number of people in Australia) to Canada and the United Kingdom, which have introduced changes to limit the number of international students in their countries.

Overseas migration underestimated

As the Treasury explained last week, it underestimated net overseas migration by 25%. International students are the major cause of this.

They are now at record levels, with about 870,000 current and former international students in Australia. They make up the largest part of the temporary migrant population.

During the pandemic, the number of international students in Australia has more than halved. In December 2019, there were more than 630,000 international students in Australia. By December 2021, there were 315,000. Since Australia reopened its borders, the number of international students entering the country has rebounded much quicker than anticipated.

Along with pent-up demand, the Morrison government introduced policies to encourage international students to return. This included removing caps on the number of hours a student could work and allowing students to stay longer after they have finished their course.

Now, amid dual housing and cost-of-living crises, international students have also become a political issue. Not only is the federal government looking to decrease net overseas migration but the opposition wants to go even further.

Who is affected by this change?

So far, the focus of the impact of international student caps has been on universities. But there could be much wider impacts on the economy and community if international student numbers are capped.

One thing that is often lost in the debate is the diversity of the international education sector. Universities only make up about 40% of current international student enrolments.

The remainder of the students are in private colleges, English language schools and secondary schools.

International students are also important parts of Australia’s workforce. The occupation with the largest number of international students is “carer and aides”. This means industries like aged care and disability support rely on an international student workforce.

In 2023, international education was also Australia’s fourth largest export valued at $48 billion. Of this, $17 billion was collected in course fees and the remaining $31 billion was spent in the broader economy.

This means any change to international student numbers could have an impact way beyond the campuses of Australia’s elite universities.

Missing details

During his budget speech, Treasurer Jim Chalmers focused on housing as a central to how caps will be calculated.

As he told parliament:

[…] for too long, enrolments have grown without being matched by an increase in student housing supply.

“We will limit how many international students can be enrolled by each university based on a formula, including how much housing they build.”

But it is not yet clear how this will happen.

It is also unclear how much international students are impacting upon housing costs. Some research has shown the impact of international students on housing and rental prices is small.

One factor the government could consider here is how many domestic students are enrolled at a particular institution. This is so domestic students do not suffer from a cut that sees fewer resources where they study.

In Australia, it is certainly true the larger, more prestigious universities have the most international students. But they also enrol huge numbers of domestic students.

The largest private vocational colleges enrol almost exclusively international students, usually in courses like business and hospitality. As our analysis (below) shows, of the ten largest private providers, nine were private colleges where there were few domestic students.

It is important to note, this is the part of the international education sector identified as having the most problems with compliance and exploitation. This is what the government has been keen to crack down on when it talks about “shonky” providers.

What happens next?

The bill has been referred to the Senate’s education committee, which is due to report on August 15.

In many ways “too many students” is a good problem to have. It demonstrates Australia’s international education sector is strong.

But we have to watch out for unintended consequences. The diversity of the system – from elite, research universities educating both international and domestic students to private colleges largely educating international students – also needs to be taken into account.

And to adequately understand the impacts, we need more detail now from the government about how they plan to do it.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Migration: unis cry foul over attack on international student numbers

This post was originally published on Michael West.

Down Periscope is a submarine comedy; the Australian version is a comedic tragedy. Former Royal Australian Navy serviceman, Rex Patrick on the latest Defence debacle.

‘Down Periscope’ is a comical movie about an old decrepit submarine being turned into a winning capability. The real life ‘Down Periscope’ being played out in the Royal Australian Navy has an opposite plot and is a $30B tragedy.

Measure Twice, Cut Once

In 2019 the Navy decided to upgrade the search periscopes on the Collins Class submarines from an ‘analogue’ periscope device to a ‘digital’ optronic device. Subsequently Defence entered into a contract with Raytheon for $381 million to do the upgrade work.

At Senate Estimates in February, based on a tip, Senator Jacqui Lambie asked Defence officials if there were installation issues with the new optronics masts – she suggested they didn’t fit. They took the question on notice, and then didn’t answer it. 

They have also failed, in the 90 days since I submitted a ‘measure twice, cut once’ FOI application seeking details about the installation plans and troubles, to come back to me with the results of that FOI submission (the statutory processing time frame is 30 days). 

Yesterday, before Defence Estimates commenced, the Minister for Defence Industry announced the optronics mast upgrade will not go ahead..

Under questions from Senator Lambie this afternoon, the Chief of Navy denied that the decision not to proceed with the upgrade was related to an installation issue, but revealed they have spent $33 million dollar on the masts and will likely have to pay an additional break fee for the contract.

That’s 33 million wasted! Cha-ching!

But wait, there’s much more!

The sad thing is, the optronics mast weight is practice waste. Practice makes perfect, and Defence are certainly well versed at wasting large sums of money, letting the taxpayer shoulder the cost and national security be what it is.

Fifteen years ago, Prime Minister Kevin Rudd unveiled the 2009 Defence White Paper which included the planned replacement of the 6 Collins Class submarines with 12 future submarines.

Construction of the first future submarine was to begin in 2016, in time for it to be fully tested, commissioned and accepted into service, ready to replace the first retiring Collins Class submarine in 2024 and thereby avoiding a capability gap.  

Defence dithered and dathered on a replacement solution, first considering a son-of-Collins design (and actively discrediting all off the shelf submarine designs available at the time) and then a Japanese submarine, before contacting the French in 2016 to build 12 Attack Class submarines. 

In September 2021, when Prime Minister Scott Morrison announced his AUKUS plans, the Attack class submarine program was cancelled. Unfortunately, a lot of the focus around that announcement was centred on the fallout between Morrison and French President Macron, which meant that the enduring loss of $4B (including an $830 million compensation payment to the French), money spent not achieving anything, was almost lost in the shadows.

Cha-ching!

Collins lifebuoy ahoy

Along with the cancellation of the optronic mast and Tomahawk missile, the Defence Industry Minister (re)announced the Government would spend between $4B to $5B (officials later stated the cost would be $4.3B to $6.4B) extending the life of Collins.

The Minister, in (re)announcing the extension, cast the expenditure as an investment. But the truth is, if Defence had been capable of buying a submarine in the 15 years since the program was announced, this expenditure wouldn’t have been necessary if Defence had simply approached the future submarine in accordance with the 2009 plan.

So, hardly an investment, really just a waste.

Cha-ching!

Even more cost depths

The $4.3B to $6.4B cost of the life extension covers upgrades to the Collins main motor, diesels and switchboards, not the ongoing sustainment cost.

There bad news there. Coincidently on the day the Minister was (re)announcing the life extension project, the Chief of Navy was giving some advice to the Senate on the cost of keeping older ships going.

“The reality with the cost of ownership of warships is, there’s a slight premium at the beginning when you settle them into service and iron out any issues. Then that cost of ownership stabilises through life and then as they get older the cost off ownership increases, particularly as you are dealing with obsolesce issues and more frequent repair issues.”

The cost of Collins sustainment has risen to $769 million this year, from $710 million last year. It’s a situation that keeps getting worse and we should expect it will continue to get worse as we move forward.

Cha-ching!

Boats no better above surface 

Last year we learned that the future frigates, which was supposed to be a proven off-the-shelf vessel but ended up being a paper design, had gone from $45 billon for nine vessels (from an original $30 billion plan) to $65 billion.

The government’s response to this blowout was to decrease the number of ships purchased from nine to six. So, we were buying nine ships for $45 billion and are now getting six vessels for the same price.

Cha-ching!

And to rub salt into the taxpayers’ wounds, the Chief of Navy, under questioning from Senator David Shoebridge, conceded that the offshore patrol vessel fleet we are getting for $4.7 billion dollars is “not fit for purpose”. It’s a Navy vessel that has “limited utility in combat operations”. Thank you Defence, and thank you consultants who analysed the market and advised them on the best way forward.

Cha-ching!

McHale’s Navy marooned

Senate Estimates has revealed a naval shipwreck. Ignoring the $30 billion in waste described above, as hard as that might be, between Senators David Fawcett and Shoebridge, it was established that if we had to go into combat in the next couple of years, we’d be in a lot of trouble. When the balloon goes up you have to fight with what you’ve got, not what you expect to get in 10 years. 

With no new (usable) ships to be delivered before 2032, two of our eight ANZAC class frigates being decommissioned, submarine docking times on the increase and the Navy relying on the hope that we’ll get some developmental mine warfare capabilities online sometime in the next 5 years, the total likely combat capability available (taking into account that not every ship the Navy has in the water will be available) will be:

• 2 Collins submarines
• 2 Air Warfare Destroyers
• 4 ANZAC frigates

For the billions of dollars we’re spending on our Navy each year, we could station one combat vessel every 3,220 km along our 25,760 km coastline. 

Senator Shoebridge summed up the situation to MWM slightly differently. “With what we have available I’m confident we could take on the inhabitants of Heard Island, assuming we can get one of our two supply ships going”.

Australia, Defence and the anti-Midas touch with submarines

This post was originally published on Michael West.

Anthony Albanese’s diary proves a PM hard at work. But who did he meet with? Kim Wingerei checks in on the Prime Minister’s priorities.

It took the endurance of MWM’s Transparency Warrior, Rex Patrick, to have the PM’s diary released after a protracted court battle for Freedom of Information. His FOI request was specifically related to “meetings/discussions (in-person or by remote means) between the Prime Minister and persons/entities external to the executive government.”

Unsurprisingly – and in some cases understandably – many of the diary entries are redacted. The reasons given include relevancy (to the FOI request), Cabinet confidentiality (an often over-used excuse), the personal safety of any person (e.g. travel between meetings) or personal details.

And there are oddities (why was the Qantas $6m 100th birthday party not noted?)

PM Albanese’s Diary: complete and total surrender after long and expensive battle

So who does the PM meet with outside of the daily cut-and-thrust of Parliament and the bureaucracy?

Captains of (some) industries

During 2023, Anthony Albanese had a dozen meetings and phone conferences with company CEOs and chairs.

This included one-on-ones with Rio Tinto boss Jacob Stausholm, who also scored an Albo site visit in WA, and BHP Chair Ken McKenzie. Like most PM’s Albo did get to speak at the Business Council of Australia’s (BCA) annual shindig of C-suite and consultancy types. BCA’s Jennifer Westacott and Tim Reed also scored a meeting with the PM before the event.

Anthony Albanese also met once with the CEO of Perdaman, the – ahem – exuberant Vikas Rambal. Perdaman is a WA chemicals and fertiliser company with a colourful history. Rambal was once in partnership with Indian high-flyer, Pankaj Oswal.

WA Carbon Fiasco: Pilbara plant to blow more CO2 than Safeguard Mechanism will save

The only other industry represented in meetings with the PM during 2023 was the Pharmacy Guild’s Trent Twomey. He didn’t meet with anyone from the health or aged care sector, nor anyone from growth industries such as IT, AI, renewables or rare minerals.

Bankers, financiers and insurance execs were equally notable in their absence, as were farmers, educators, builders and supermarket bosses. In fairness, the latter may have been too busy attending Senate and other inquiries.

He didn’t even meet with Alan Joyce! At least not one-on-one, although peculiarly, Albanese’s attendance at least one publicised Qantas event was absent from his diary (but not from the paparazzi).

Qantas’ phantom flights – what’s the scam?

We also noted only two meetings with union bosses in his diary, in contrast to twice as many meetings during the year with media execs from Nine Entertainment, News Corp and Foxtel (but not MWM!). Maybe a sign of him keeping his friends close but his enemies closer?

Albo and the media

The PM started 2023 with a frenzy of more than 20 media interviews during January 2023, excluding pressers and appearances at floods and other crisis events.

Apart from the (not diarised) parliamentary ‘door-stops’, Albanese is not big on press conferences, preferring interviews. His favourites appear to be Rupert Murdoch’s Sky (with 14 appearances during 2023), ABC (although only once on Insiders) and, of course, Seven’s Sunrise and Nine’s Today Show, with 10 and 9 appearances respectively.

His radio favourites are the ABC and 2GB, with Ben Fordham and Chris O’Keefe scoring six appearances between them through the year.

That the PM spends time on media is a good thing, of course, but it is notable that he was particularly busy in the week before the Voice referendum on October 14, with 21 TV and radio appearances. A case of too much and too late?

The Airbus Albo myth

The Airbus Albo myth was created by The Australian and other News Corp rags, in their usual effort of discrediting a Labor PM. Albanese’s diary tells a very different story. He travelled to New Zealand once during the year to the obligatory international summits, and attended King Charles’s Coronation, as he would.

There were no detours to seek out old relatives or side trips to Hawaii as Scott Morrison did, although he did have time to meet with the Oz’s royalist-in-chief, Greg Sheridan, just before leaving London. A sleeping remedy before his long return flight perhaps.

The Albo diaries are a testament to a very busy man with little extra time on his hands. In the time-honoured tradition of Australian PMs, his only ‘vice’ appears to be cricket. But who would begrudge him three meetings to pick the right Prime Minister’s XI?

Diary entries from January 1 to March 31, 2023

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Diary entries from April 1 to June 30, 2023

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Diary entries from July 1 to December 31, 2023

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Peter Dutton’s India escape and the secret meetings with the colourful coal baron

This post was originally published on Michael West.

A report critical of Australian generals’ leadership in Afghanistan was given to the Defence Minister Richard Marles in November 2023, but was not published until after the McBride sentencing. Stuart McCarthy on a travesty of justice.

After six months of obfuscation until the day whistleblower David McBride was jailed last week for trying to expose wrongdoing by senior defence force officers in relation to Afghanistan war crimes, Defence Minister Richard Marles released a report that largely vindicated McBride’s actions.

The final report of the Afghanistan Inquiry Implementation Oversight Panel was sent to Marles in November last year. Efforts for the report to be published included three Senate orders for the production of documents, numerous freedom of information requests, and a Royal Commission hearing.

Marles’ repeated attempts to conceal the report until the announcement of McBride’s five-year prison sentence obliterate Prime Minister Albanese’s remaining platitudes about improved government transparency, accountability and whistleblower protections.

Afghan war crimes whistleblower David McBride sentenced to prison

The oversight panel was established in response to the 2020 report of the Brereton Inquiry, which found evidence of 39 murders of civilians or detainees by Australian special forces soldiers in Afghanistan.

Chaired by former Inspector-General of Intelligence and Security Dr Vivienne Thom, the panel was given the explicit remit by then Prime Minister Morrison to be “the government’s – and the public’s – independent body to ensure that Defence is making the changes recommended by the [Brereton] inquiry to help ensure we can address any underlying issues. Its role will be an essential part of ensuring ongoing confidence in our defence force.”

Refusing to investigate

Months before the panel’s final report was sent to Marles late last year, government refusals to properly investigate senior defence force commanders had already provided the trigger for those officers to be referred to the International Criminal Court prosecutor.

Under Article 28 of the ICC Statute – on which Australia was a founding signatory – commanders are criminally liable where they “knew or should have known” crimes were being committed but failed to take reasonable steps to prevent the commission of those crimes.

Article 28 of the Rome Statute makes clear this “lack of curiosity” is itself a war crime. https://t.co/3uG2gYbbqb pic.twitter.com/8dZopx8Ud5

— Stuart McCarthy (@StuartMcCarthy_) May 15, 2024

Having hidden behind the flawed Brereton report for years, Marles’ credibility is further tainted by his stalling tactics with the oversight report. Thom and her colleagues demolished the key Brereton findings on command responsibility, namely that no disciplinary action should be taken against any defence personnel above the rank of Sergeant.

International lawyer and defence analyst Dr Glenn Kolomeitz told MWM that Brereton’s “blanket exemption” from investigation given to the higher commanders “is based on a flawed application of the law of command responsibility and a fundamental lack of understanding of the trigger for the ICC to assume jurisdiction.”

Kolomeitz’s 2023 PhD paper studied the application of Article 28 under Australian criminal law, using the Brereton Inquiry as a case study.

Avoiding responsibility

The oversight report says the panel “did not agree with the Brereton Inquiry’s view that some accountability and responsibility could not fall on the most senior officers.”

Echoing the command responsibility doctrine codified in the ICC Statute, the panel found “multiple signs” of war crimes were ignored, concluding “personal knowledge or direct involvement of the senior officers in the causes or behaviour that led to the corporate failure are not required.” The oversight report also says:

“More senior officers have to take some level of responsibility for what goes wrong in their organisation or at least for any circumstances or policies that permitted or facilitated it. If no one at an appropriate level of authority knew anything about the misconduct, that is an organisational failure in itself.”

What the report doesn’t mention is that senior Defence and government officials were, in fact, directly informed of at least some of the alleged murders almost immediately after they occurred, for example, at Sola then Darwan in Afghanistan’s Uruzgan province in September 2012.

McBride’s affidavit to the ACT Supreme Court said that in 2013, he became concerned about the subsequent scapegoating of innocent soldiers aimed at masking command accountability for unlawful killings and decisions by those commanders about what information was or was not being disclosed to the public.

His public interest defence was disallowed by Justice David Mossop and he was forced into pleading guilty after crucial evidence was literally removed from his defence lawyers on national security grounds.

Not only do the Afghanistan oversight panel’s findings and conclusions vindicate McBride’s concerns and echo the command responsibility doctrine codified in the ICC Statute, Marles’ and his department’s handling of the report further highlights the abuse of security classifications as a means of preventing scrutiny of wrongdoing by senior government officials.

Crime to report a crime: outrage as government turns screws on whistleblower David McBride

Marles obfuscation pre-empted

In the cover letter for their report to Marles on 8 November 2023, the panel actually pre-empted the Defence Minister’s obfuscation, writing that it

has been advised by Defence that there is no need or justification for this report to be classified.

Yet when Marles finally allowed the report to be published last week, he claimed in his covering letter to the Senate, “I previously advised that prior to the release of the documents sought by these orders, further advice needed to be sought from the Office of the Special Investigator.”

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This claim appears to be just as spurious as Marles’ claims of public interest immunity, previously demolished in the Senate. However Marles did succeed in delaying the report’s tabling until the moment McBride was sentenced in the ACT Supreme Court across Lake Burley Griffin.

The report was the subject of a freedom of information request to Defence on 29 October last year. Defence requested a 14-day extension to the statutory FOI deadline on the grounds of “competing priorities currently impacting the relevant line area.”

The department eventually provided one of the panel’s previous quarterly reports but refused to produce the final report on the grounds of public interest immunity, namely “the document contains information that the exposure could prejudice the effectiveness of the Australian Defence Force.” This refusal contradicts the oversight panel’s own covering letter to the Minister, basically countermanding a written recommendation from the independent panel commissioned to “oversight” the same department’s response to war crimes allegations.

Interestingly, Defence FOI staff “did not identify any documents in relation to” correspondence with Marles on the oversight panel reports. Regardless of whether “advice” to the Minister is anything more than a figment of Marles’ imagination, what’s clear is,

there was no need for such “advice” in the first place other than as a pretext for stonewalling.

Did Marles lie to the Senate?

Back across the lake in Parliament House, the Senate first ordered the oversight report be tabled on 28 February this year. After Marles claimed the document “may contain prejudicial information,” on 18 March the Senate ordered documents “containing advice the report contained prejudicial information” be tabled.

The Senate rejected Marles’ claims and made a further order on 26 March requiring Marles’ representative in the Senate to comply with the previous two orders by the following afternoon. Senator Malcolm Roberts told the chamber: “The question is: from where did this advice appear? It smells like a delaying tactic. To be frank, I don’t believe the claim of prejudice is genuine.”

Investigation failure

For its part, the ability of the Office of the Special Investigator (OSI)’s ability to investigate senior defence force commanders is even less credible than its performance in investigating dozens of alleged murders. After almost four years and hundreds of millions of dollars, OSI has yielded only one criminal charge. Kolomeitz, who drafted last year’s referral of senior Australian commanders to the ICC Prosecutor, says of the OSI:

“If, as it appears, the OSI is institutionally incapable of conducting any serious investigation into the command responsibility of the higher commanders, Australia is clearly inactive.”

The ICC has made it abundantly clear that inactivity in these circumstances is the trigger for the assumption of jurisdiction.

The OSI has itself previously obfuscated the Senate on its role in addressing command responsibility for the alleged war crimes. When OSI Director-General Chris Moraitis testified to Senate Estimates last year about the legality of rules of engagement and targeting orders given to special forces troops in Afghanistan, he deflected key questions back to Defence, the organisation he’s supposed to be investigating.

Evading the Royal Commission

Marles’ handling of the oversight panel report has also been raised in recent Royal Commission hearings. On 7 March, Counsel Assisting the Royal Commission into Defence and Veteran Suicide asked the Defence Minister about when the report would be released. Marles waffled replied:

“I’m not about — I don’t have a timeframe in my head, so if you’re asking me to give evidence on this, that’s the answer to your question, and, you know, I’m not going to be drawn on making assumptions on that now. I mean, the answer to your question is I don’t have a timeframe in my head. What we will do is respond to that thoroughly.”

The oversight panel itself testified to the Royal Commission 11 days later, on 18 March, the same day Roberts called out Marles’ “delaying tactics” in the Senate.

Counsel assisting the Commission explained that although the panel provided their final report to Marles last November because the report wasn’t yet released by the Defence Minister, they could only provide “principles-based” answers on the matters raised in their report. However, on the question of command responsibility, oversight panel member and former Secretary of the Attorney-General’s Department Robert Cornell said:

“… if you’re looking organisationally and if you’re looking at leadership and if you’re looking at culture … you should look at it from a much higher level, at the level at which the most senior people should, in our view, take responsibility for it and at least analyse where there were failings in leadership, and if in fact there were such failings, and that hasn’t happened.”

Royal Commission chair Nick Kaldas had by this time already identified “catastrophic leadership failures” in Defence and government as “a real risk to Australia’s security” and one of the key factors behind struggling defence force recruitment and retention.

Et tu, Mark Dreyfus

If Attorney-General Mark Dreyfus’ refusal to drop the McBride prosecution wasn’t bad enough, his cabinet colleague Marles’ concealment of the Afghanistan oversight report is a new low for the Albanese government.

Not only does Marles’ repeated defiance of Senate orders based on non-existent “advice” constitute contempt of Parliament, his obfuscation to the Royal Commission shows a similarly contemptuous attitude towards the ultimate avenue of government transparency available under the Australian democratic model.

All this with the aim of perverting the outcome of a criminal trial that jailed the only person yet to be held accountable for Afghanistan war crimes – the whistleblower.

McBride’s lawyer, Mark Davis, announced an appeal against Mossop’s rulings “on the meaning of duty” moments after his client was marched out of court to jail. According to Davis, “This is an issue of national importance, indeed international importance, that a Western nation has such a narrow definition of duty.”

We can only speculate at this stage what role the Defence Minister’s handling of the Afghanistan war crimes oversight report might play in that appeal.

Has Four Corners done the Government’s dirty work in the David McBride prosecution?

This post was originally published on Michael West.

Dan Duggan – facing decades in a US prison on conspiracy charges – has accused ASIO and a US intelligence agency of recruiting, actively monitoring and then turning on him before his dramatic 2022 arrest. Andrew Gardiner reports. 

In a testimony of twists to do John le Carré proud, the pilot and former American marine Dan Duggan has lifted the lid on how, he says, ASIO and the US Naval Central Intelligence Service (NCIS) recruited him to their cause in a well-known Hobart hotel 12 years ago before throwing the book at him – on bogus grounds – in 2022.

Languishing in Lithgow Prison, NSW, and facing extradition to the US (followed by a possible 65 year sentence) at a hearing this Friday, Duggan’s explosive account of events leading to his arrest were revealed in a March letter to the inspector general of intelligence and security (IGIS) excerpts of which have been viewed by MWM.     

“Upon arrival at the hotel lobby, I was … unexpectedly introduced to a person who identified themselves as an agent from the US NCIS,” Duggan says of the 2022 encounter. “I was completely surprised by the (presence of an) NCIS agent (and it) left me feeling quite awkward, anxious, confused and to be honest, a bit upset that (ASIO) was not previously forthcoming” about the meeting’s purpose.

As the meeting got under way, it soon emerged that the three agents present – two Australians and one American – had little interest in events at the centre of Duggan’s 2017 indictment by a US Grand Jury on conspiracy and arms trafficking charges (namely, the training of Chinese pilots in South Africa from 2011-12).

Instead, they showed great interest in Duggan’s plans to expand his aviation consultancy work to China in 2013, one ASIO agent getting right to the point: “if you can meet any (Chinese) generals we can do business.” 

This suspected solicitation to spy for the ‘Five Eyes’ intelligence alliance – Australia, Canada, New Zealand, the UK and US – was “so unexpected, and said with such conviction, (that it was) imprinted in my mind, made me anxious and I think it is fair to say I was in slight shock,” Duggan wrote. 

Duggan assists ASIO

In his letter to the IGIS, Duggan clearly states that he took the ASIO/NCIS approach “as a call for an important contribution to an overall intelligence gathering mission for Australia.” After some consideration, “I decided to assist ASIO,” he added, before heading to China in March, 2013. 

Crucial to Duggan’s chances of success in China was Su Bin, his ‘business agent’ who – unknown to Duggan, his lawyers say – was also a hacker, with a habit of stealing US military aircraft designs. Su Bin was arrested in Canada on US charges some 15 months after Duggan arrived in the People’s Republic, triggering an automatic exit ban from China for him and his family. 

“This put us in a very precarious and unpredictable position as some elements (among) Chinese authorities suspected me of contributing to Su Bin’s arrest,” Duggan wrote. On the other side of the world, the arrest also appears to have raised red flags among American authorities, who discovered correspondence between Duggan and Su Bin on the latter’s laptop and phone. 

Those messages showed that Su Bin paid for Duggan’s travel from Australia to Beijing in May 2012, and Duggan had asked for his help in sourcing Chinese aircraft parts for his Top Gun tourist flight business. Perhaps of greater concern to American authorities, however, was Su Bin’s work as the employment broker who brought together Duggan and Chinese state aviation company AVIC (for which Duggan trained the Chinese pilots in South Africa).

AVIC was blacklisted by the US last year due to its links to the Chinese military. 

ASIO and NCIS knew about training

As one might expect from matters involving intelligence agencies, there are a bunch of questions around what is a  very murky case. In a legal filing, Duggan’s lawyer, Bernard Collaery, states the ASIO and NCIS agents were aware of Duggan’s involvement in training pilots for AVIC when they met him in the Hobart hotel in 2012. 

Despite questions this raises around their true motives, Duggan continues to believe they were genuinely “asking me to help them in gathering valuable intelligence.”

The questions don’t end there. Why, for example, did the US indict Duggan on charges surrounding his training Chinese pilots in South Africa – events ASIO and NCIS agents showed no real interest in at the Hobart meetings – when their true interest, at one point or another, seemed to settle on AVIC and Su Bin? 

“Charges of convenience”

Could it be that Duggan’s 2017 indictment was on ‘charges of convenience’: that is, the only charges for which they had enough so-called ‘evidence’ to sway a Grand Jury? Finally, was Duggan’s renouncing his US citizenship in 2016 – an unnecessary move, as it turns out – triggered by the whiff of peril after Su Bin’s North American arrest?

Certainly, Duggan’s non-citizenship of a country aiming to put him away for 65 years will be raised at Friday’s extradition hearing. 

Dan Duggan’s taking Australian citizenship in 2012 (above left) is pivotal to lawyer Bernard Collaery’s moves to thwart his extradition.

Duggan drops US citizenship

In something of a sneak preview of his court strategy this Friday, Duggan’s lawyer, Bernard Collaery, penned a March letter to the Attorney General, Mark Dreyfus, pointing out serious flaws in the US extradition action.

Despite the US continuing to insist Duggan was a US citizen at the time he trained pilots in South Africa, Duggan became an Australian citizen in 2012, effectively ending his American citizenship from that moment under US law. 

While Duggan took the extraordinary step of renouncing his US citizenship in 2016 (above right) it didn’t matter legally. He was already a sole Australian citizen.   

Collaery also touched on the “recruiting” of Duggan in Hobart in 2012: “ASIO and United States officials were discussing issues with our client, in anticipation that he would either assist them with intelligence acquisition involving China and otherwise passively enable them to monitor our client’s engagement in China, which they openly encouraged.”

He described the extradition attempt as a baseless, Trump-era “political prosecution,” since Duggan’s training the Chinese pilots was perfectly legal. 

Collaery is also expected to raise the “double criminality” rule applying to extraditions, in which Duggan cannot be extradited on charges arising from US laws that have no equivalent here. He may also argue Duggan faces “political charges” stemming from a 2017 chill in China-US relations still five years away when Duggan trained Chinese pilots in 2011-12. 

While sources close to the case concede the extradition will likely succeed at Friday’s hearing, they are confident it will be thwarted once an appeal reaches the Federal Court. “After a thorough examination of the applicable laws by senior legal professionals, we don’t think this has a leg to stand on,” one source told MWM.  

The case for conspiracy and arms trafficking will be heard by Magistrate Daniel Reiss at Sydney’s Downing Centre Local Court on Friday.

Dan Duggan worked with ASIO, que?

This post was originally published on Michael West.

In a landmark day for the ‘system of justice’ in Australia, Afghan war crimes whistleblower David McBride has been sentenced to jail. Michael West reports.

This is a momentous day for the system of justice in Australia. David McBride, the Afghan war crimes whistleblower has been packed off to prison for 5 years and 8 months – a non-parole period of 27 months.

He endangered no lives. He was not involved in the murder of 39 Afghan civilians by the Army. Its generals remain decorated, off scot free. Army command and Defence chiefs have taken no responsibility.

McBride had complained through the requisite Army channels but his complaints about proper legal process fell upon deaf ears. This is essentially an administrative story where a lawyer saw failure in legal process, was rebuffed when he tried to go through the right channels, and eventually went to the press to reveal the failure. Then had his life destroyed.

Do a soldier’s orders trump a lawyer’s public duty? David McBride sentencing reserved

David was charged with stealing documents and ‘communicating’ them to journalists. He stole them as an act of public duty, he said at his sentencing hearing, in the belief that he would be vindicated for acting in the public interest.

What a double standard we face. Big 4 consultancy PwC stole secret govt documents. PwC partners were not charged with stealing documents. The firm stole them for personal profit for the partners. Who is the traitor? Who is the enemy of the state? The whistleblower acting from public duty, or the PwC cabal acting for personal profit?

PwC stole these secret government documents – while working confidentially with the government for large consultancy fees, gave them to foreign MNC companies to rip off Australia to the tune of hundreds of millions of dollars in tax, refused to comply with the demands of Australia’s Parliament to release information – and after a year of rough publicity, has now been rewarded by going back into government consulting.

The problem with PWC and the Big 4 – treason is the business model

McBride, on the other hand, has spent five years awaiting the hangman’s noose. He has done his time already. Now a family is deprived of a father. 

The case is likely to be appealed as there are important precedents set by J David Mossop’s decision last November. The appeal is likely to be on grounds that this guilty decision was too narrow and would only conceal war crimes in future. 

Does an army lawyer have a duty to simply obey orders or a higher duty to justice and the public interest? The Nuremberg trials found that “I was just obeying orders” was not an adequate defence.

Afghan war crimes whistleblower David McBride says the latter – public interest and truth should prevail. That’s why, he says, he leaked sensitive information to the media about the carriage of legal affairs in the Defence Force.

The leaks led to the ABC’s Afghan files story, and the Brereton Inquiry later found 39 Afghans were illegally killed during the war. Those responsible have never been prosecuted, and the Army command has not taken responsibility. Rather McBride, the whistleblower, has been prosecuted. 

Do a soldier’s orders trump a lawyer’s public duty? David McBride sentencing reserved

But David McBride was never given the chance to argue his case as Justice Mossop struck out his public interest defence late last year. McBride suddenly had no case to present and was compelled to plead guilty, and now he is off to jail.

Yet it is not only David McBride on trial, it is the system of justice.

What kind of justice is it where a whistleblower is tried, yet all of his superiors, the decorated generals and army command, get off scot free for Australia’s war crimes in Afghanistan?

What kind of justice is it where McBride is denied the opportunity to put his case in an open court of law, being forced rather to plead guilty to government charges but with no resort to the most basic legal right of pleading his case?

And what kind of justice is it that allows a whistleblower to be tried and convicted while the actual war crimes go un-prosecuted, while dozens of incidents go entirely unpunished, untested in court?

What kind of justice is it where an extravagant defamation circus of Ben Roberts-Smith, a $40m circus of prancing silks and media titans – a civil trial – spilt daily evidence of war crimes, yet it is the whistleblower who faces the criminal proceedings?

What kind of justice is it where Defence can outsource its SAS black ops to a secretive private operator, Omni Executive, while an employee of the state trying to expose administrative failures can face criminal trial?

Off the Books: how the Army privatised SAS elite to dark ops outfit Omni

Postscript: The Tax Office hit Lendlease this week with a demand for $112m for its ‘double-dipping’ tax scam – a billion-dollar fraud. The whistleblower, former tax lawyer Tony Watson, remains in limbo, fighting to keep his home. Australia needs whistleblower protections that work.

Lendlease whistleblower and lawyer Tony Watson – the law is failing to protect whistleblowers

This post was originally published on Michael West.

No more Ashes, no more AFL or NRL Grand Finals, no more Olympics. If you no longer watch TV with an aerial, seeing big sporting events for free may soon be a thing of the past. Kim Wingerei reports on new anti-siphoning proposals.

Only 61% of us still watch free-to-air TV via an antenna, according to Free TV Australia, a lobby group. The number of people watching TV via the internet using streaming services is rapidly increasing. (To wit, the millennials and younger generations who watch ‘TV’ mostly on their phones or tablets.)

Streaming and apps are frustrating for some, convenient for others, and expensive for all of us.

So far, however, the most popular sporting events have been shielded from the set-top boxes and the app paywalls. Anti-siphoning laws were introduced when pay TV first came to Australia, designed to ensure that footie Grand Finals, Olympics, the Ashes, and the other big events Australians love would continue to be available on free-to-air TV.

And as free-to-air TV is now going the way of the app – e.g. ABC’s iView, 7Plus, 9Now, 10 Play and SBS on Demand – it would be logical to extend the anti-siphoning regime to digital distribution. But the Government says otherwise.

When the new anti-siphoning legislation is presented to the Senate for approval this week, it will apply to free-to-air only, not digital.

This means that when the AFL next puts its TV rights up for auction, the Grand Final audience can be included in full. The current contract expires in 2031, by which time there won’t be many aerials left in St Kilda, Essendon, Adelaide, Perth or Western Sydney. The majority of these eyeballs will already be hooked on the digital juice, and anti-siphoning will have joined all those antennas in the scrapyard.

We’ll all be paying.

Winners and losers

The commercial TV operators are vehemently opposing the move, ganging up against Communications Minister Michelle Rowland in a meeting last week. Greg Hywood, Chair of Free TV Australia, told the AFR, “When it comes to sporting rights, the new laws must be amended to stop paid streamers buying up exclusive digital rights and putting sports behind a paywall. If not, the increasing number of Australians who watch their free sport on TV using the internet will miss out.”

This is already happening, of course, with Amazon Prime having acquired the rights to the next Cricket World Cup. And both the NRL and the AFL are investing overseas to expand their audience reach. TV rights are by far the most lucrative part of their business and streaming is where the big money is.

And that, of course, is the nub of the argument of the free-to-air broadcasters and their affiliates: protection against the big multinationals. Nine Entertainment owns Stan, the only Australian streaming service, but a minnow compared with Netflix, Disney and Amazon. The ailing Ten Network is already controlled by Paramount Pictures – presumably one of those multinationals Hywood rails against.

And then there is Kerry Stokes’ Seven West Media. The once great media giant of the West continues to go south. Its share price has halved over the past couple of years, and with a share market value of $300 million, its days of buying big-ticket sporting rights may well be over, anyway.

ABC and SBS, who were early adopters of the app distribution model, will, hopefully, continue to thrive in their respective niches, but don’t expect much prime-time sports from them either in the future.

It begs the question, with no skin in the game of free TV – analogue or digital – will Rupert Murdoch’s News Corp and Foxtel once again be the winner from a government decision? To do so, they will need to be able to convert the set-top boxes that still attract a premium to app distribution without too much subscriber and revenue leakage. No easy task, but aided by a fragmented market, it would take a brave person to bet against them.

The losers, either way, are Australian sports fans.

Fake news or no news? The folly of the News Media Bargaining Code

This post was originally published on Michael West.

Senior officials regularly give advice to Ministers and are paid very well to do so. But how frank and fearless is that advice when kept secret from the people it ultimately affects? Rex Patrick reports on cowardice within the public service executive ranks.

I remember my days as a young, adventurous, technically competent and sea-proven sailor travelling beneath the waves in an Oberon-class submarine. But looking back, I also remember how naïve I was to politics. If the defence minister said something, it was taken seriously and treated with respect – the demigod had decreed.

It wasn’t until decades later, when I had the great pleasure of serving South Australia in the Senate that I realised the extent of my naivety.

As a cross-bench senator with the balance of power, I spent a lot of time talking to ministers in their offices and in the chamber. Some of them were smart, some less so. In many cases, their only qualification for being placed in the job was loyalty to the leader or membership of a particular faction.

None of them were even close to a demigod.

Ministerial briefs and submissions

Most ministers, even the smart ones, know very little about their portfolios.

When first sworn in, they are handed their ‘Incoming Government Brief’, and their department spends day after day briefing them, getting them up to speed. As they progress through their time, they’re kept connected to the departmental teat, suckling on briefs that arrive in their office by way of the ministerial submissions, briefs and talking points.

Ministers, sometimes at the direction of Cabinet, propose policies, but it’s the department that constructs the policy and presents answers to the Minister to consider signing off on or taking to Cabinet. In some cases, the department can even veto an unworkable policy.

And it’s the department that guides them on a day-to-day basis through their journey.

Some departments completely capture their Ministers. The current Defence Minister, Richard Marles, is a good example. He’s moved in with the Department and is drunk on their Kool-aid.

Marles the drunken sailor: Rex Patrick on Defence Minister’s haste to defence spending waste

Requesting the brief

Ministerial Brief Cover (Source: FOI)

If I want to know what’s happening in the ministerial wing of Parliament, I use Freedom of Information (FOI) to access the briefs flowing through the teat. I seek out the advice that the Department is giving its minister.

But more often than not, I am confronted with an FOI Act Section 47C exemption describing redacted text as advice, opinion, and recommendations and stating that its release to the public will “inhibit full and frank deliberations, prejudicing the ongoing thinking processes of the board and its advice to government.”

Eminent silk Bret Walker SC’s reaction to such claims says it all:

How very odd! The fearlessness of a person confident that his or her position will be known to very few. The frankness of a person who can be confident of the limited audience he or she has.

Ministerial submissions are always cleared by Senior Executive Service personnel; officials on a minimum of $180K per annum but stretching up to $977K per annum. They take money to provide advice that they don’t want us to see. They expect the minister to act on it, but they don’t want it scrutinised.

No secret dealings

On 1 September 2023, Laura Berger-Thomson, a First Assistant Secretary in the Revenue Group at Treasury, swore an affidavit in support of the idea that Stage Three Tax Cuts advice given to Jim Chalmers a month into his new role as Treasurer should be kept from the public.

In trying to defend the decision, Ms Berger-Thomson laid out her case:

“I am concerned about the damage to the relationship of trust and confidence between the Treasurer and the Treasury that can be expected if the ministerial submission is required to be released at this time …”

I wasn’t asking Ms Berger-Thompson to meet me in a discrete place somewhere in Canberra to hand the advice to me in a brown envelope. I was formally asking for the document in accordance with the right given to me, a right given to all of us by Federal Parliament.

A breach of trust and confidence can not occur in circumstances where a call for the documents is made under FOI, and the documents are released in accordance with the FOI Act.

I know Jim Chalmers and I know that he would never consider the release of documents in accordance with the FOI Act to be damaging to the level of trust and confidence he might have with Treasury. The claim was ludicrous.

In conflict with the law

Then came the all too common argument from Ms Berger-Thomson:

“If the Treasury officials could no longer prepare and engage in developing scenarios and advice for the Treasurer related to Cabinet processes on the presumption they are a confidential communication within government, I expect it would change the nature of the advice we provide in a substantial and detrimental way. Policy advice on highly sensitive policy areas, if prepared at all, would be prepared in a much flatter, less targeted way, which would be much less useful for the Treasurer.”

“This would not be done to defeat potential FOI requests, but to avoid the risk that any disclosure would jeopardise future decision making.”

The problem with that argument is Treasury officials would be acting in contravention of Section 10 of the Public Service Act, which demands professionalism and integrity from our public servants.

Section 10(4) states that the public service “is open and accountable to the Australian community under the law …” and Section 10(5) places an obligation on officials to provide “the Government with advice that is frank, honest, timely and based on the best available evidence.”

There is no scope for a public servant to be less detailed in their response to a minister, or flatter, or not to respond.

The performance of their statutory duty is not conditional on whether or not their work may be subject to public release or scrutiny. The FOI and Public Service Act live in the Federal Register of Legislation in harmony.

When cross-examined in an Administrative Appeals Tribunal (AAT) hearing, Ms Berger-Thompson struggled to reconcile her sworn statement with the law.

The last sentence of Ms Berger-Thompson’s affidavit alleging the tax cuts brief’s disclosure says, “It would undermine good public administration and effective decision-making.”

But that proposition ignored the views of the Parliament expressed in the FOI Act which state clearly that one of the objectives of FOI is “increasing public participation in Government processes, with a view to promoting better-informed decision-making.”

A hollow win against secrecy

The AAT ordered the release of the information relating to the stage 3 Tax cuts that I’d sought, albeit almost 18 months after I’d requested it and after Parliament had amended the tax cuts. I had won the legal battle, but Treasury – through delaying the brief’s release – won the secrecy.

AAT Deputy President Britton-Jones rejected Ms Berger-Thompson’s arguments. In his decision, he stated:

I do not accept the submission of [Treasury] that disclosure of the document in issue would inhibit frank and candid advice from public servants in the future.

Nothing will happen to Ms Berger-Thomson for her misguided arguments and transparency betrayal. No public servant has ever been sanctioned for saying “no” to the release of documents.

Tell me I’m dreamin’

Ministerial submissions are not cabinet submissions. They do not enjoy the protection of the Cabinet confidentiality doctrine, because they’re views of the Department and not the views of the minister.

Most Australians would be happy with proactive disclosure of ministerial briefs seven days after the minister has received them. Wouldn’t that encourage citizens’ participation in a democracy? Imagine a world where the Government didn’t present every decision as a fait accompli.

But as I wake from my transparency dream and come to refocus on the secrecy culture that’s festering inside the Senior Executive Service, I can’t help but feel it’s part of the reason, fuelled by RoboDebt and other public service scandals, that the public’s trust in the public service is diminishing.

It’s the Senior Executive Service that must promote transparency and integrity change, supported by their ministers. That’s something that doesn’t seem to be happening under the current Public Service and political leadership.

For now, I’ll just have to submit FOI applications for ministerial briefs and then go on to fight the fights I inevitably get made to fight.

Rex Patrick’s Federal Court win a victory for transparency and a loss for government secrecy

This post was originally published on Michael West.